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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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I am one of three named beneficiaries of a very substantial

Resolved Question:

I am one of three named beneficiaries of a very substantial discretionary trust (£700 million). I have just discovered that the settlor has written a letter of wishes that excludes the beneficiaries from receiving trust income. Is there a legal remedy?
Submitted: 3 years ago.
Category: Law
Expert:  UKSolicitorJA replied 3 years ago.
Hello,

I am afraid not.

A Discretionary Trust does not give the beneficiaries any entitlement or interest in the assets of the Trust or its income. The beneficiaries merely have an expectation that they may be considered by the Trustees who have discretion on how to distribute the assets and income of the Trust.

The Trustees are not bound by the settlor's letter of wishes although they may take it into consideration if they wish to.

Hope this answers your query.
Customer: replied 3 years ago.

If the Trustees refuse to pay out to the beneficiaries surely there would be case that the Trustees are failing in their duty. Or perhaps the Trustees can just sit on 700 million and continue in their position. Hardly equitable and if there is no remedy it would appear that the beneficiaries will be, essentially, disinherited. The Trust is Jersey based and has been extant for 20 years. There have been previous distributions amounting to about two and quarter million. Do you still believe there is no available remedy?

Expert:  UKSolicitorJA replied 3 years ago.
I am afraid discretionary trusts may continue for up to 80 years if created before 6 April 2010 and for 125 years if created thereafter and the settlor will probably have provided in the Trust how any assets which have not been distributed by the Trustees should devolve when the Trust comes to an end.

Sorry, but my answer still stands and I can only advise honestly based on my understanding of the law.

UKSolicitorJA and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you for your response. I am assuming that you have taken due regard of the duties of a Trustee to, at all times, consider the needs, circumstances and interests of all of the beneficiaries when exercising powers or discretions and that you have deemed that should they fail in those duties there is still no remedy?

Expert:  UKSolicitorJA replied 3 years ago.
I am afraid discretionary trusts give very wide powers and discretion to Trustees. However, there is nothing stopping you from making your case to the Trustees if you are in hardship, they may (or may not) consider making a distribution to you.

All the best
Customer: replied 3 years ago.

The question that you do not seem able to answer is, if the Trustees do not perform their duties ie. to make themselves aware of the circumstances of the beneficiaries and in this case no Trustee has contacted the beneficiaries for 20 years, are they in breach of their duties as Trustees and is there a mechanism for having those Trustees replaced? I note that your area of expertise is immigration law, are you comfortable advising on such a specialist area, or would you consider that an advisor with greater experience of discretionary trusts would be a better option?

Expert:  UKSolicitorJA replied 3 years ago.
I have nothing further to add and have already advised you that the Trustees cannot be compelled to contact any particular beneficiary in such a Trust.

I will opt out just in case any other expert has anything to add.
Expert:  UKSolicitorJA replied 3 years ago.
It would appear that no other expert has anything to add to what you have already been advised here.

All the best